House of Commons - Explanatory Note
Civil Partnership Bill [HL] - continued          House of Commons

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Part 8 - Commencement of certain proceedings and duration of certain orders

715.     This Part establishes that, subject to any rules of court, applications for financial provision can be commenced at any time after the application for a dissolution, nullity or separation order. The Part also establishes provisions for the circumstances when orders will cease to have effect or cannot be applied for, for example when a child of the family reaches the age of 18 and where a civil partner in receipt of periodic payment marries or forms a subsequent civil partnership. It also deals with applications for periodical payments where a maintenance calculation is still in force.

Part 9 - Variation, discharge etc of certain orders for financial relief

716.     This Part establishes conditions for the court to vary financial orders made and includes powers to vary orders, discharge orders, suspend or revive suspended provisions of an order, remit (cancel) arrears and to vary property adjustment and pension sharing orders. Where a court discharges or varies a periodical payments order the court can make additional provision through one of the other orders. The Part gives the circumstances in which a child who is sixteen or over can apply for the variation of a periodical payments order. The court may vary periodic payments which are secured when the person liable has died and deal with the liability within the context of the deceased person's estate. The court will also have power to direct when the variation or other order will take effect.

Part 10 - Arrears and repayments

717.     This Part deals with arrears and repayments and provides that arrears cannot be enforced without the leave of the court. The court can order repayment of various sums paid under certain circumstances, for example sums paid by mistake when an order had already ceased to have effect because the recipient had married or formed another civil partnership.

Part 11 - Consent orders and maintenance agreements

718.     In this Part provisions are made for civil partners to reach agreement on the terms of financial orders and for the court to make an order (a consent order) on terms as set out by the parties and presented to the court. There are also provisions for agreements to be altered by the court during the lives of the parties, restrictions on applications to magistrates' courts for maintenance and provisions relating to the duration and limits of periodical and secured periodical payments where those provisions are inserted into an agreement to alter it. This Part also provides for agreements to be altered after the death of one of the parties, if an agreement for maintenance allows for payments after the death of one of the parties.

Part 12 - Miscellaneous and supplementary

719.     This Part provides: for the court to make orders overturning transactions carried out in an attempt to defeat financial orders under the Schedule provisions for a settlement to be overturned on the bankruptcy of the person who made it; for orders for payments made to a person suffering from a mental disorder to be paid to another person and; for appeals when a pension order has taken effect. This Part also defines a number of terms used in the Schedule.

Schedule 17: Financial relief in court of summary judgment etc.: Northern Ireland

720.     This Schedule provides for civil partners to apply to courts of summary jurisdiction for maintenance for themselves and children of the family.

Part 1 - Failure to maintain etc: Financial provision

721.     This Part sets out the circumstances in which an order can be made and the types of orders which can be made. The court can make an order for either lump sum payments or periodical payments to be made if it is satisfied that the civil partner has not made reasonable provision to maintain the applicant or a child of the family. A lump sum payment can take into consideration expenses or liabilities reasonably incurred in maintaining the applicant or child prior to the making of the order. The Part sets out the matters the court is to take into account when determining what orders it should make both in respect of civil partners and in respect of children. These include, amongst other things, the financial resources of the applicant and the civil partner concerned and the financial needs, earning capacity and education of the child. Where the child of the family is not the respondent's child the court must also consider whether anyone else is liable to maintain the child and whether the respondent has assumed any responsibility to maintain the child. Whilst the court must have regard to all the circumstances of the case, the welfare of any child under the age of 18 should be the first consideration. The court can adjourn the proceedings if the civil partners wish to attempt a reconciliation and must refuse to make an order if an application to the High Court (under Part 7 of Schedule 16 (Financial relief in the High Court or a county court etc.: Northern Ireland)) is more appropriate.

Part 2 - Orders for agreed financial provision

722.     This Part allows civil partners to apply to the court for a financial provision order on the ground that the other civil partner has agreed to make financial provision for them or for a child of the family. The court has power to make alternative orders if both civil partners agree.

Part 3 - Orders of court where civil partners are living apart by agreement

723.     This Part allows the court to make orders for periodical payments for maintenance to be made by one civil partner to the other for that civil partner or for a child of the family. Such orders can be made where the civil partners have been living apart for a continuous period exceeding 3 months and one of the civil partners has been making periodical payments during that three-month period. However, the court cannot order the civil partner to make payments which, during any period of three months, would amount to more than he paid over the three months prior to the application. If the court considers that an order under this Part would not provide reasonable maintenance for the civil partner or for a child of the family, the court may treat the application as if it were an application for an order under Part 1. The matters which the court must take into account when making an order under this Part are the same as those in Part 1.

Part 4 - Interim orders

724.     This Part allows the court to make interim orders when applications have been made under any of the provisions in Parts 1, 2 and 3. The interim order will require the civil partner to make periodic payments to the applicant or to a child of the family. The court can set the date when payments under the order begin and when the order ceases to have effect. However, the start date cannot be prior to the date of an application for an order under Parts 1, 2 or 3. The order will also cease to have effect when the court makes its final decision on the application or 3 months after the date on which the interim order was made, whichever is earliest.

Part 5 - Commencement and duration of orders under Parts 1, 2 and 3

725.     This Part makes provision for when orders made under Parts 1, 2 and 3 can begin, age limits for making orders for children (the court cannot make an order in favour of a child over the age of 18 unless the child is in full-time education or undergoing training) and the length of time for which the orders can remain in force. Orders will cease to apply if the civil partners live with each other for a continuous period of six months.

Part 6 - Variation etc. of orders

726.     This Part sets out the powers the courts have to vary or revoke periodical payment orders and to suspend or revive any provision of the orders. The court has power to order a lump sum payment in place of an order for periodical payments and vary a periodical payment order by specifying when such an order is to come into effect. The Part sets out the procedure for making such an order and the matters which the court is to consider when exercising its powers under this Part. Either civil partner can apply to have an order varied, as can a child of 16 or over in relation to orders for periodical payments to or in respect of a child.

Part 7 - Arrears and repayments

727.     This Part deals with arrears and repayments and provides the court with powers for the enforcement of orders. It also allows for sums paid under an order after it had ceased to have an effect, because the person entitled to receive the sums had married or had formed a subsequent civil partnership, to be refunded. The magistrates' court will have power to enforce the order in the same way as it can enforce any other maintenance order.

Part 8 - Supplementary

728.     This Part provides certain supplementary provisions. For instance, it applies to orders made under the appropriate Schedule to the Domestic Proceedings (Northern Ireland) Order 1980 so as to provide for appeals, the constitution of the court and the powers of the High Court and the county court in relation to certain orders, so as to match the provisions available for married people. It also stipulates that the jurisdiction of the magistrates' court under this Schedule be exercisable even if one of the parties is not domiciled in Northern Ireland.

Schedule 18: Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership

729.     This Schedule provides for applications in courts in Northern Ireland for financial relief following the dissolution, annulment or legal separation of civil partners as a result of legal proceedings in an overseas county. The provisions correspond to those available for overseas divorces etc in Part IV of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989.

Part 1 - Financial Relief

730.     Part 1 provides that the Schedule will apply where a civil partnership has been dissolved or annulled or the civil partners have been legally separated in an overseas country and the dissolution etc is entitled to be recognised as valid in Northern Ireland. Sub-paragraph 2 of paragraph 1 provides that for the purposes of application for financial relief, the dissolution, annulment or separation may have taken place before the Civil Partnership Act is brought into force. Sub-paragraph 3 of paragraph 1 defines an overseas country as a country or territory outside the United Kingdom, the Channel Islands and the Isle of Man. Sub-paragraph 4 defines a child of the family and sub-paragraph (5) defines "authority" and "voluntary organisation" as per the Children (Northern Ireland) Order 1995.

731.     Under Paragraph 2 either civil partner may apply to the court for orders under paragraph 9 or 13 of the Schedule. However, under Paragraph 3 no application will be possible if the applicant has subsequently entered into a new civil partnership or married. Paragraph 4 provides that leave of the court is required for an application to be made.

732.     Under Paragraph 5 where it appears to the court that the applicant or a child of the family is in need of immediate assistance, an interim order for maintenance may be made in favour of the applicant or the child.

733.     Paragraph 7 sets out the criteria the court will use to determine whether it has jurisdiction to deal with an application for financial relief following an overseas dissolution etc. One of the civil partners must be domiciled or have been habitually resident in Northern Ireland for a period of one year when the application is made or when the civil partnership was dissolved or annulled or the order for legal separation was made. Alternatively either or both of the civil partners must have an interest in a dwelling-house in Northern Ireland on the date of application for leave to apply which was at some time during the civil partnership a civil partnership home of the civil partners.

734.     Paragraph 8 provides that the court must consider whether Northern Ireland is the appropriate venue for the application, and outlines the criteria the court is to take into account when considering this.

735.     Paragraph 9 describes the orders that the court is able to make on applications under this Schedule. The court may make the same orders for financial provision as are available for civil partnerships registered in Northern Ireland under Part 1, 2 and 3 of Schedule 16 (Financial relief in the High Court or a county court etc.: Northern Ireland) of the Bill including orders for property adjustment and pension sharing if the civil partnership has been dissolved or annulled. If the partners are legally separated the court may make orders for financial provision and property adjustment as provided in Part 1 and 2 of Schedule 16 (Financial relief in the High Court or a county court etc.: Northern Ireland) to the Bill.

736.     Paragraph 10 sets out the matters to which the court must have regard when exercising its powers under this Schedule, which are the same as those to be considered when making financial provision for civil partners in civil partnerships registered in Northern Ireland and for any children involved.

737.     Paragraph 11 establishes the restrictions on the court's powers when its jurisdiction to deal with the application arises only from the fact that the civil partnership home is situated in Northern Ireland. In these circumstances the court may make various orders including for lump sum payments, transfer of the property or sale of the property.

738.     Paragraph 12 provides for the court to make an order on terms agreed by the civil partners (a consent order).

739.     Paragraph 13 provides for the court to order transfer of tenancies of dwelling houses.

740.     Paragraph 14 applies certain provisions of Schedule 16 (Financial relief in the High Court or a county court etc.: Northern Ireland) to interim orders or orders for financial provision, property adjustment and pension sharing made under paragraphs 5 and 9 of this Schedule.

741.     Paragraph 15 provides for the avoidance of transactions designed to defeat claims under paragraphs 5 and 9. Where one of the civil partners (A) is granted leave to make an application for an order under paragraph 9 and the court is satisfied that the other civil partner (B) is, with the intention of defeating a claim by (A), about to deal with any property, it may make an order restraining (B) from doing so. Paragraph 15 also provides that where one civil partner (A) is granted leave to make an application under paragraph 9 or where an order has been made under paragraph 5 or 9 and the other civil partner (B) has, with the intention of defeating a claim by (A), made a disposition, then the court may in certain circumstances set aside the disposition.

742.     Paragraph 16 provides circumstances in which it can be presumed, for the purposes of paragraph 15, that the person who disposed of or is about to dispose of property did so, or is about to do so, with the intention of defeating the other civil partner's claim.

Part 2 - Steps To Prevent Avoidance Prior To Application For Leave Under Paragraph 4

743.     Part 2 provides the court with powers to make such orders as it thinks fit restraining a party from making any disposition or transfer out of the jurisdiction intended to defeat the other party's prospective claim. The court may only make an order under this Part where the applicant intends to apply for leave to make an application for an order under paragraph 9 as soon as he or she has been habitually resident in Northern Ireland for one year.

Part 3 - Supplementary

744.     Part 3 clarifies the meaning of and defines various terms for the purposes of this Schedule and provides that the provisions relating to avoidance and prevention of transactions are without prejudice to any power of the High Court to grant injunctions under section 91 of the Judicature (Northern Ireland) Act 1978.

Schedule 19: Housing and Tenancies

745.     Schedule 19 makes amendments to a range of enactments relating to housing and tenancies, in order to ensure equality of treatment between spouses and civil partners. This Schedule extends only to Northern Ireland.

746.     Paragraph 1 amends Article 14 of the Rent (Northern Ireland) Order 1978 which provides that on the making of an order for possession of a dwelling-house or at any time before the enforcement of such an order, the court, on application of the tenant or of the tenant's spouse if that spouse is occupying the dwelling-house as his or her residence, may stay or suspend enforcement of the order or postpone the date of possession. The amendment ensures that the court treats a tenant's civil partner in the same manner as a spouse in relation to applications for orders for possession.

747.     Paragraph 2 amends Schedule 1 to the Rent (Northern Ireland) Order 1978. This Schedule determines (for the purposes of tenancy succession) what person is the statutory tenant of a dwelling house at any time after the death of a person who, immediately before his death, was either a protected or statutory tenant. The amendment ensures that a civil partner is given the same rights as a spouse.

748.     Paragraph 3 amends Case 8 in Part 1 of Schedule 4 to the Rent (Northern Ireland) Order 1978 which sets out the grounds on which courts may make orders for possession of dwelling-houses let on or subject to protected or statutory tenancies. The amendment ensures that the civil partner of a landlord has the same rights as those of the landlord's spouse.

749.     Paragraph 4 amends Article 2A of the Housing (Northern Ireland) Order 1981 which provides a definition of the meaning of "member of a person's family" for the purposes of the Order. This paragraph amends Article 2A to provide that a person is a member of a person's family if he is the spouse or civil partner of that person, or if he and that person live together as husband and wife or as if they were civil partners. Paragraph 4 also amends Article 2A to provide that, for the purposes of Article 2A(1)(b), a relationship by marriage or civil partnership shall be treated as a relationship by blood.

750.     Paragraph 5 amends Article 24(3) of the Housing (Northern Ireland) Order 1983 which provides a definition of a member of a person's family for the purposes of Chapter II of Part II of the Order. This paragraph amends Article 24(3) to provide that a person is a member of another person's family if he is the spouse or civil partner of that person, or if he and that person live together as husband and wife or as if they were civil partners. Paragraph 5 also provides that a relationship by marriage or civil partnership shall be treated as a relationship by blood.

751.     Paragraph 6 deals with succession on the death of a tenant. It amends Article 26 of the Housing (Northern Ireland) Order 1983 which provides for qualified persons to succeed to a secure tenancy where the tenant dies. Article 26(2)(a) provides that a person is qualified to succeed to a such a tenancy if he occupied the dwelling as his only or principal home at the time of the tenant's death and he is the tenant's spouse. Article 26(3)(a) provides that where there is more than one person qualified to succeed the tenant, the tenant's spouse is to be preferred to another member of the tenant's family and Article 26 (4A) makes provision in respect of tenancies assigned under the Matrimonial Causes (Northern Ireland) Order 1978.

752.     Paragraph 6 amends Article 26(2)(a) to provide that a person is qualified to succeed to a secure tenancy if he occupied the dwelling as his only or principal home at the time of the tenant's death and he is the tenant's spouse or civil partner and amends Article 26(3)(a) to provide that where there is more than one person qualified to succeed the tenant, the tenant's spouse or civil partner is to be preferred to another member of the tenant's family. Paragraph 6 also inserts a new Article 26 (4B) which makes provision in respect of tenancies assigned in pursuance of an order made under this Bill.

753.     Paragraph 7 amends Article 32 of the Housing (Northern Ireland) Order 1983 which provides, inter alia, that a secure tenancy is not capable of being assigned unless the assignment is made in pursuance of an order made under the Matrimonial Causes (Northern Ireland) Order 1978. This paragraph inserts a new Article 32(1)(aa) which provides that a secure tenancy can also be assigned if the assignment is made in pursuance of an order made under this Bill.

754.     Paragraph 8 amends Article 33(2)(a) of the Housing (Northern Ireland) Order 1983 which provides that where a secure tenancy is, on the death of the tenant, vested or otherwise disposed of in the course of the administration of the deceased tenant's estate, the tenancy ceases to be a secure tenancy unless the vesting or other disposal is in pursuance of an order made under the Matrimonial Causes (Northern Ireland) Order 1978. This paragraph inserts a new Article 33(2)(aa) to provide that such a tenancy will not cease to be a secure tenancy if the vesting or other disposal is in pursuance of an order made under this Bill.

755.     Paragraph 9 makes provision in relation to subletting or assignments. It amends Article 94(2) of the Housing (Northern Ireland) Order 1983 which provides that certain protected tenancies are not capable of being assigned except in pursuance of an order made under the Matrimonial Causes (Northern Ireland) Order 1978. This paragraph amends Article 94(2) ensure that such tenancies can also be assigned if the assignment is made in pursuance of an order made under this Bill.

756.     Paragraph 10 makes amendment to Schedule 3 to the Housing (Northern Ireland) Order 1983 which sets out the grounds on which the court may order possession of a secure tenancy.

757.     Ground 2A, provides a ground for possession where a dwelling house is occupied by a married couple, or by a couple living together as husband and wife, and one partner leaves the dwelling house because of violence by the other partner. Paragraph 10 amends Ground 2A to provide a ground for possession where the occupants of such a dwelling are a married couple or a couple who are civil partners, or are a couple living together as husband and wife or living together as if they were civil partners.

758.     Paragraph 11 amends Article 3 of the Housing (Northern Ireland) Order 2003 which provides a definition of the meaning of "member of a person's family" for the purposes of the Order. The amendment provides that a person is a member of a person's family if he is the spouse or civil partner of that person, or if he and that person live together as husband and wife or as if they were civil partners. Clause 11 also amends Article 3 to provide that, for the purposes of Article 3(1)(b), a relationship by marriage or civil partnership shall be treated as a relationship by blood.

759.     Paragraph 12 amends Article 13 of the Housing (Northern Ireland) Order 2003 which provides that a person is qualified to succeed to an introductory tenancy if he occupied the dwelling as his only or principal home at the time of the tenant's death and he is the tenant's spouse. The amendment ensures that a tenant's civil partner is given the same rights as a tenant's spouse in relation to succession under an introductory tenancy.

760.     Paragraph 13 amends Article 14 of the Housing (Northern Ireland) Order 2003 which sets out the circumstances where an introductory tenant is a successor to the tenancy. These circumstances include the assignment of the tenancy to the tenant under family law. This paragraph inserts a new Article 14(2)(d) which provides that an introductory tenant is a successor to the tenancy where the tenancy was assigned to the tenant in pursuance of certain orders under this Bill.

761.     Paragraph 14 makes amendment to Article 15 of the Housing (Northern Ireland) Order 2003 which provides for succession to an introductory tenancy where the tenant dies. Article 15(2) provides that where there is more than one person qualified to succeed the tenant, the tenant's spouse is to be preferred to another member of the tenant's family and Article 15 (3) makes provision in respect of tenancies vested or otherwise disposed of in pursuance of certain orders under family law. This paragraph amends Article 15(2) to provide that where there is more than one person qualified to succeed the tenant, the tenant's spouse or civil partner is to be preferred to another member of the tenant's family. It also inserts a new Article 15 (3)(a)(v) which makes provision in respect of tenancies vested or otherwise disposed of in pursuance of certain orders under this Bill.

762.     Paragraph 15 amends Article 16 of the Housing (Northern Ireland) Order 2003 which provides that an introductory tenancy is not capable of being assigned except in pursuance of certain orders under family law. This paragraph inserts a new Article 16(2)(a)(v) to provide that an introductory tenancy may be assigned in pursuance of certain orders under this Bill.

763.     Paragraph 16 amends Article 28 of the Housing (Northern Ireland) Order 2003 which provides definition of certain terms used in Part III of the Order. The term "partner" is defined as meaning a person's spouse or a person other than a spouse with whom a person lives as husband and wife. This paragraph amends the definition of "partner" to include a civil partner in the same context as a spouse.

Schedule 20: Family Homes and domestic violence: Northern Ireland

Part 1 - Amendments of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6))

764.     This Part extends the provisions relating to matrimonial homes and domestic violence contained within the Family Homes and Domestic Violence (Northern Ireland) Order 1998 ("the 1998 Order") so as to apply to civil partners as they apply to married persons.

765.     Part I of the Schedule amends Articles 2 to 15, 20, 22, 24, 31, 33 and 39 and Schedule 2 to the Family Homes and Domestic Violence (Northern Ireland) Order 1998. The amendments consist mainly of adding the words "civil partner", "civil partnership" and "civil partnership home", as appropriate, in order to extend the rights of spouses under those provisions to civil partners. Part I also amends references to "matrimonial home rights" to read "home rights", so that the description covers the rights of both married people and civil partners. The amendments provide for civil partners to apply for non-molestation orders and occupation orders, and grant civil partners the same rights to occupy the civil partnership home, as married people currently have to occupy the matrimonial home. The civil partner's right to occupy the civil partnership home will be a charge on the property. The amendments made to Schedule 2 will enable certain tenancies to be transferred on the dissolution of a civil partnership or following a declaration of nullity of a civil partnership.

 
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Prepared: 7 July 2004